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Abandoned Housing Projects in Malaysia: a Building Law Perspective

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Abandoned Housing Projects in Malaysia: a Building Law Perspective Abandoned Housing Projects in Malaysia: A Building Law Perspective Nuarrual Hilal Md Dahlan School of Law, Universiti Utara Malaysia, UUM Sintok, Kedah Darulaman, Malaysia Abstract Housing programme has been robustly implemented in Malaysia since Independence. At the commencement of the programme, the Federal Government provided housing accommodation to its citizens. However, due to the high demand for housing and the inability of the Government, the Government invited private sector to cooperate in supplying housing. Several laws have been enacted to control the housing industry. Among the laws are the Street, Drainage and Building Act 1974 (Act 133)('SDBA') and the Uniform Building By-Laws 1984 (G.N.5178/1984) ('UBBL'). Despite there are various housing policies and legislations to support housing programme, there are still many problems arising from the housing programmes in Malaysia. An example of the problems is the abandoned housing projects. Since the 1970s until todate, this issue is still occurring in Malaysia. Many purchasers have become aggrieved, suffered damage and losses. This paper aims to highlight the problems of abandoned housing projects through the analysis of building laws in Malaysia. This paper used qualitative case study and legal research methodologies to analyse the issues and to meet the research objectives. Through this paper, it is evident that there are weaknesses in the building laws. Hence, appropriate amendments and improvements to the laws should be made to empower the laws and provide adequate measures against the issues. The results of this paper will provide new ideas to housing practitioners and policymakers in dealing with the problems of abandoned housing projects in Malaysia towards achieving the 11th Malaysia Plan and National Housing Policy (2018-2025)(‘DPN’). Keywords: abandoned housing projects; building law; housing policy; legal issues; proposals. Introduction After Independence in 1957, Malaysia, as a new nation has embarked on to establish various means and objectives to develop it to become a sustainable and prosperous country in the world. Thus, the Government has initiated various development plans and with the participation of the private sector. The essential development plans are the consecutive 5 year of Malaysia Plans. The current latest Malaysia Plan is the 11th Malaysia Plan that covers between the year 2016 until 2020. One of the objectives of the Malaysia Plans is to provide quality, affordable and adequate housing to its citizens. Thus, various housing programmes have been carried out firstly by the Federal Government and later with the help of the private sector. Thus, in every part of Malaysia, one can witness the pervasive booming development of housing projects. For the citizens, the available stocks of housing units mean they will be guaranteed with sufficient 13 shelter and place of abode. For the Government, the existence of robust development of housing development has helped it to achieve the objectives in the Malaysia Plans, DPN and energise the economy. While for the private sector, the opportunity to participate in housing industry means providing them with sources of profit and wealth to the respective shareholders and stakeholders. Thus, many layers and segments of society receive the benefits of housing development industry. Be that as it may, housing development in Malaysia has certain spilt over effects and setbacks. Among these are poor workmanship, projects delay, abandoned housing projects, problematic housing projects and other consumers' grievances due to the default of the developers, constructors and consultants. Housing development process involves various stages. The first one is the land stage. This is followed by planning, building and pre-construction stage. Later there is a construction stage and finally, post-construction stage. In every stage, some authorities and laws govern the stage. For land stage, the relevant authorities will be the state authority and the land office. Under the planning, building and pre-construction stage, the responsible authorities are the planning authority, local authority and technical agencies. While under the construction stage and the post-construction stage, the governing authorities are the Ministry of Housing and Local Government (KPKT), the technical agencies and the local authority. Technical agencies are agencies that provide views and recommendations to the local authorities, local planning authorities and consultants before certain building and construction approvals can be issued in respect of water, electricity, public road, and other infrastructures. Examples of the technical agencies are the electrical authority – Tenaga Nasional Berhad (TNB), water authority, Public Works Department (JKR) and Department of Drainage and Irrigation (JPS). These housing development stages and authorities are governed by various laws and statutes Among the laws involved are the land law National Land Code 1965 (Act 56)('NLC'), Land Acquisition Act 1960 (Act 486), Town and Country Planning Act 1972 (Act 176)(‘TCPA'), Street, Drainage and Building Act 1973 (Act 174)('SDBA'), Uniform Building By-laws 1984 ('UBBL') and Housing Development (Control & Licensing) Act 1966 (Act 118) and its regulations ('HDA'). The existence of these authorities and laws is to ensure the rule of law, good environment, life sustainability and preserve the safety, security and rights of the stakeholders including the house residents. Above all, these laws are to ensure that the constructed house buildings are fit for human habitation. This writing focuses on the building law that involves the SDBA and the UBBL This writing involves legal analysis and discussion of the relevant legal provisions, case law and problems that involve in abandoned housing projects. General Issues Involving Building Laws in Abandoned Housing Projects in Malaysia It is a trite fact that the technical agencies and the local authority prescribe conditions for the approved building plan and other infrastructure plans. These conditions must be met by the applicant developer for them to be given the Certificate of Fitness for Occupation (CFO) or the Certificate of Completion and Compliance (CCC), as the case may be. The SDBA and the UBBL confer them this power. Nonetheless, it is submitted that there are times that the conditions imposed by the local authority are unjust to the developers and finally may affect the smooth development progress of their housing development projects. This issue can lead to abandonment. For instance, there is proof that the local authority has imposed additional conditions, at the end part of the completion of the project or in the middle of the development, 14 as a condition precedent for the issuance of CF or CCC. However, these conditions have not been stipulated earlier for immediate action of the developers. Secondly, the failure of the developers to fully comply with the prescribed conditions, resulting in the failure to obtain the necessary CF or CCC, before the project can be considered complete and fit for human habitation. These issues and problems occurred in a housing project as reported in Tang Kam Thai and 133 Others v Langkah Cergas Sdn Bhd and Others [2005] 1 MLJU 248 (High Court of Malaya at Kuala Lumpur), in housing projects at Taman Temiang Jaya, Seremban, developed by AMA Construction Sdn. Bhd and at Wisma Telaga, Butterworth (previously known as Wisma ABC, Lot 3681, Jalan Telaga Air, Seksyen 4, Butterworth, Seberang Perai Utara, Pulau Pinang, developed by Tropiland Sdn. Bhd (Ministry of Housing and Local Government file numbers: KPKT/08/824/2605, KPKT/08/824/7347-I, KPKT/08/824/2732-01, KPKT/08/824/1843; Tropiland Sdn. Bhd. v. Majlis Perbandaran Seberang Perai [1996] 4 MLJ 16 (High Court of Malaya at Penang); Majlis Perbandaran Seberang Perai v. Tropiland Sdn. Bhd. [1996] 3 MLJ, 94; [1996] 3 CLJ 837 (Court of Appeal); Aw Yong Wai Choo & Ors v. Arief Trading Sdn. Bhd & Anor [1992] 1 MLJ 166) (High Court of Malaya at Ipoh). There are also evidences that in some situations where there is no specific requirement imposed by the local authority, under the stage of plans' approvals (building, infrastructure plans and other plans), on the applicant developers to obtain comments from the Department of Minerals and Geoscience (JMGS) and Department of Environment (JAS) over the sites of the housing development projects. It also seems that these technical agency departments would still be needed to carry out certain feasibility studies over the purported sites on which the housing developments are to be implemented. It is submitted, the professional comments may be necessary, to avoid any possible occurrence of abandonment of the housing development projects due to the soil structure, which may involve additional costs to the developers. This problem happened at Taman Dayang, Mukim Kuah Langkawi (developed by INI Holding Sdn. Bhd.), Taman Perwira, Jerantut, Fasa II, (problems with the geotechnical soil and land of the project) developed by Yee Hoong Loong Corporation Sdn. Bhd. and Taman Harmoni, Lot 82, Mukim of Cheras, District of Hulu Langat, Selangor (problem of slime soils). A similar problem also occurred at Taman Villa Fettes, Lot 141 dan 3622, Mukim 18, NED, Pulau Pinang, where it was found that the project had to be abandoned because the developer had incurred substantial expenditure to extract and remove hidden hard rocks/granite in the soil of the project sites (Ministry of Housing and Local Government, n.d; Ministry of Housing and Local Government file numbers: KPKT/08/824/63 97-1, Jld 2, KPKT/BL/19/6397-I, KPKT/08/824/4285-1, KPKT/08/824/3947-5, KPKT/08/824/6037-1; Syarikat Chang Cheng (M) Sdn. Bhd v Pembangunan Orkid Desa Sdn. Bhd. [1996] 1 MLJ 799 (High Court of Malaya at Kuala Lumpur). During the rehabilitation of abandoned housing project, the rehabilitating parties may have to obtain permission to use or renew the prior approved plans from the building authority. Nonetheless, if section 25 of the TCPA are triggered, the rehabilitating parties have to apply for new building plans or other plans because the approved plans have to be amended in compliance with the new conditions of the relevant authorities.
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